PA Appeals Court Finds Application for a Nonconforming Use Certificate Was Not an “Application for Development” and Thus Issuance of Certificate Was Not Appealable

The subject property owned by John and Melissa Sidari, was located in a residential zoning district where commercial uses are not permitted, but had been used for commercial purposes since the 1950s. In 2005, the Sidaris applied for and received a permit to erect a pole barn on the property to store commercial trucks and equipment in connection with their excavation business on the property. The Sidaris applied for a non-conforming use certificate, which the township’s Zoning Officer issued on November 3, 2011. The Estate of Adrian Slusser owned property adjacent to the Property. James Slusser and Elizabeth Mancuso, who are husband and wife, also owned a nearby property. Objectors appealed the issuance of the certificate to the Zoning Board. At the hearing before the Zoning Board, James Slusser stated that he could see the Property without any obstruction and had noticed an increase in truck movement and noise. The Zoning Board dismissed Objectors’ appeal as untimely, finding that they had reason to know of the approval of the nonconforming use certificate prior to April 5, 2012. Objectors appealed to the trial court, which denied their appeal.

Objectors contended that their May 4, 2012, land use appeal was timely because they filed it within 30 days after they first learned on April 5, 2012, that the Sidaris had obtained a non-conforming use certificate. However, the court found that the Objectors were not entitled to appeal the issuance of the non-conforming use certificate under the Pennsylvania Municipalities Planning Code (MPC); therefore, the issue of whether Objectors’ appeal was timely was irrelevant. Here, the purpose of the non-conforming use certificate was to document the existence of the non-conforming use, not to authorize either development or construction. Since the approval of the certificate did not grant the Sidaris any additional property rights or authorize new development or construction, the court held that the Zoning Officer’s issuance of the certificate was not appealable under Section 914.1.

Slusser v Black Creek Township Hearing Board, 2015 WL 5567968 (PA Commwlth 9/23/2015)